Special Education Today

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The enthusiasm for charter schools, which was also high during the administrations of Bill Clinton and George W. Bush, reflects the desire of many parents to have choice within the public system. This desire has only been heightened by research showing superior results obtained by charters.

In a performance comparison of Boston charter school students with those not admitted, for example, Harvard University professor Thomas J. Kane found that the students attending charters outperformed their peers at traditional public schools. His research, however, was designed with the recognition that charter students are different along some critical, perhaps immeasurable, dimensions from students attending traditional schools. This is especially true in relation to students with disabilities: Traditional public schools are serving far greater numbers of them than charter schools, particularly those whose disabilities require significant special education services."

The article then goes on to cite a number of studies that show that students with disabilities are under-represented in charter schools. This is disturbing and brings to mind the recent post on these pages about the law review by Professor Mark Weber regarding some issues with charter schools and kids with disabilities. As the political support for charters increases, we need to keep a vigilant eye on how charters are welcoming and educating kids with disabilities.

What has your experience with charters been like?

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JG: So, I find that to be interesting. The dispute resolution systems, the resolution session is a new thing that came in just in 2004. Do you have any feeling as to how that's working or - -

AP: Oh, I've heard nothing but great things about it. Okay, I've heard for both sides, on the school side, as well as with the parent side, because it's a way to at least come together to have a conversation. And so, I've heard that people really - - what's interesting is that some states already had systems like that set up. So, you may not hear as much from them because it was already in place, but for those that didn't, I believe it's been a real boon and I believe we've seen fewer due process hearings as a result.

JG: Yeah, I think that's true. It's definitely kept down the number of due processing hearings and I think for most of the time, it's the right reason. I had concerns, originally, about confidentiality and about the no lawyer sort of emphasis of it, but again, that's I think just my bias coming out as a lawyer, but I think that sometimes they're there for good reasons and I was afraid that it was going to abused in that way, but I have not heard from around the country - -

AP: I haven't either.

JG: - - and it's interesting because I really thought that was - - you know, that was another one of my bad predictions - - my crystal ball is often a little foggy, you know.

AP: Well, but sometimes we don't know and I think sometimes when people say, well, why are you doing that? And it's because there's a part of me saying, we don't necessarily know all the time, but we can at least try. If it doesn't work, well, we'll fix it. I mean, but let's try some of these things and see if we really can get it to work.

JG: Arbitration was in the last reauthorization - -

AP: Yes.

JG: - - in the House bill and then, it didn't make it through the last conference. Do you think arbitration is a good model? I have some thoughts about it.

AP: I don't know. Well, I have some biases about it. My brother-in-law is into that kind of stuff (laughing) and there's a part of me saying, well, does it really work? I don't know. I really don't know.

JG: Alright because it's interesting.

AP: I probably don't know enough about it to be able to weigh in on that and I don't know. I'm one of these and I know I am the eternal optimist, but I really think that we just really need to work together to do this, but I don’t think we need a third party to necessarily come in and say, you'll do this and you'll do that. I don't know. It's too prescriptive.

JG: Okay.

AP: That's my personal opinion.

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JG: The other thing that came up a lot when I told people who I know - - and many of the people I know are dispute resolution coordinators, I'll confess that - - but had to do with the new regulations, the relatively new regulations, on revocation of consent. There's a lot of bad feeling about that for a lot of reasons. One is that there are allegations in some states that parents are switching the switch on and off a lot. There doesn't seem to be anything in either the regulations or the statute that stop a parent from doing it as much as they want. The other thing is, I guess, the argument that I've heard is that the - - who is the beneficiary, really, of special education? Is it the child or the parent? And if it really is the child, should the parent even have the right to do that? Once they have already - - not in the beginning - - I think everybody agrees, in the beginning, a parent can say no, but once they get in to special ed, can they turn it off.

AP: Well, okay, and you know, you're a lawyer - -

JG: Yes.

AP: Okay, and since when does the parent not have the right to do what he or she wants with his or her child? Does that bother me? Well, of course, it does, but yet, I'm a parent as well. I should be able to call the shots, and if I say no, the answer should be no. And I think that's why this came about. I mean, it is clearly - - shouldn't the parent have the right to say, no, I don't want this anymore? Now, will it cause some concern? Oh, absolutely. And was this heartbreaking? Of course, it was because there's a part of me saying - - you know because I think about neglect.

JG: Right.

AP: And when does this cross the line and turn into neglect or abuse or whatever? And that's a hard line to call, but that's where having been a special ed director and a special ed teacher and all of that that's where having established a relationship with a parent, I'm here to tell you, I would use that and I would never give up. I mean, I would go to that parent and just say, you know, this is it. I've had a lot of those tough conversations. I remember being with a parent and I wrote a minority opinion on an IEP because I was recommending that this child, this severely learning disabled child, go into more of a segregated classroom and I said, I honestly think he needs it. And this was in high school. I said, I just don't think he's going to get the benefit without it and very seldom do I push towards that and the parent disagreed.

JG: Wow.

AP: And she said, no. She said, I want him to be mainstreamed and she said, well - - and she said, I'm going to tell him that he better do well or I'm going to threaten to put him in there. And I said, don't. And I knew this parent very well and I said, don't do that because I said, if you ever find out you need to, I said, he's not going to want to go. He's going to view it as punishment and I talked to her and I said, I really believe this, a year later, and she put her child in the other program. But I want to be able to - - that's the same way, and if we have these relationships with these parents, we should be able to have these conversations and be able to help them through this.

JG: Right. And too often, when I see them as a hearing officer, the relationship has been so badly destroyed. My main problem with that new regulation is that it does not allow mediation as an option, and I don't understand that - -

AP: I know.

JG: - - because I can understand not allowing a due process hearing to override because the idea is that the parent is going to be acting in the child's best interest, as you said, and we do have to use that as the model because that's that law, basically. But if a school district thinks that continued special education and related services would help a child, why can't they call in a mediator and try to mediate the dispute over consent? the current federal regulations prohibit mediation in these situations and I feel that ir should be changed.

AP: Okay, no, it's a good thought.

JG: Yeah.

AP: It is.

JG: But that regulation does not even allow for mediation, which is - - that's - - and again, I'm an advocate of mediation. I think it's - - having seen hearings and mediation, I really think mediation is much better.

AP: I do too and my whole life is basically been spent in special ed because I even did special ed when I worked with the Title I Technical Assistant Centers. I have never been involved in a due process hearing and someone said, well, you must have given them everything. I said, absolutely not. I worked in the Shawnee Mission School District - - extremely wealthy - - and I said, absolutely not and the parents knew it. I couldn't. We didn't have that kind of money. So, I mean, there are ways to work together.

JG: Right.

AP: Absolutely. And I know darn well that in every job I've had as a special ed director, you spend 95% of your time with about 5% of the parents, but it's time well spent.

JG: Right. And I think you're right. And I think that the relationship issues are very important. It's interesting to me, doing hearings both in many places, the different - -

AP: Oh, what a difference.

JG: - - different ends of the scale. And again, some of it, I think, is communication. Some of it is - - I've done some work with ACRES, the rural special education group - -

AP: Yes.

JG: - - and many of the professors involved with that group think that there just aren't enough lawyers in some parts of the country that will represent people. Now, in some parts of the country, like Philadelphia and other urban areas, there are maybe too many.

AP: I agree. Yeah, I know. In Kansas, we're lucky if we had eight or nine due process hearings a year.

JG: And I don't think the goal is to have a lot of due process hearings, but at the same time, I think that sometimes that at the same time that the system is over legalized, it's also under legalized in certain parts of the country and I just - -

AP: Yes.

JG: In many rural areas just to bring a due process hearing is sort of like suing the school, which is sort of like suing the community.

AP: Yes. And that's very true in rural areas.

JG: Right.

AP: Yes, very much so.

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JG: Okay. That's very interesting. I'm going to go back to some of the other reauthorization issues, but again, at some point, I want to try to give you some time to just talk about other things that are important to you. But the National Association of Secondary School Principals announced their recommendations for what they'd like to see in the reauthorization of IDEA. I found some of them very interesting. One of them was that they - - and I can see some merit to this; on the other hand, I have a real violent, bad reaction to this - - it's that they would like to see standards of care based on disability categories, under IDEA, so that a school would know, if they had an autism program that it was a good autism program. I think you can probably guess why that bothers me a little bit. I mean, it just kinda takes the "I" out of IDEA, doesn't it?

AP: Well, it does that. The other thing is, is that when you look at any of the 13 disability categories, you have a full range of mild to moderate to significant. So, you couldn't come up with just one standard of care based upon a disability category. It won't work. What it needs to be is standards of care based upon the needs of the child, regardless of what they are. You know, and even that's difficult because every child is so different. I mean, I taught learning disabled kids, as well. Well, everyone one of them was different as night and day. So, if I had one standard of care, that would not have been useful to me at all, not at all.

JG: And it's interesting, a lot of folks that are actually out there practicing don’t get this sometimes, I think, because they - - and I don't think that they're trying to be difficult, I think it's something they don't completely understand. But I had hearing once where the child was already eligible, under speech/language needs, and they then had the whole hearing based on whether he was also eligible under autism. And I kept saying, what difference does it make?

AP: What difference does it make?

JG: Yeah. Whatever his or her needs are, pretty much you have to meet them once you put them in, right?

AP: And that's my whole thing, you know, and it's strictly for funding right now to have to put them in a disability category. Who cares?

JG: Right.

AP: It makes no difference whatsoever.

JG: Right.

AP: You can call them whatever you want. What is it that we need to provide?

JG: Yeah, and again, I think if you got to the model you were just talking about, you'd eliminate a lot of that problem too.

AP: Yes. And we've gotta get to the point though where parents will trust us.

JG: Right.

AP: That we are going to do the right thing. And I think that's where RTI can really - - RTI and EIS, I think, can be very helpful to us, that they will see that their child's needs are being met, even though we didn't have to label him or her.

JG: Okay. That's interesting. Yeah, I didn't see the connection there to that before, but I think that's very interesting.

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